In the event the presidential election results are not contested, the President-elect and his deputy will be sworn-in on August 30.
Article 141(2)(a) of the constitution on Assumption of Office of President provides that the President-elect should be sworn in on the first Tuesday following the 14th day after the date of the declaration of the result of the presidential election if no petition has been filed at the Supreme Court.
But if the election results are contested, the swearing-in will happen on the seventh day following the date on which the Supreme Court renders a decision declaring the election to be valid, Article 141(2)(b) of the constitution says.
According to Article 140(2) of the Constitution, the Supreme Court is supposed to determine the petition within 14 days from the date of filing and its decision shall be final.
Any person dissatisfied with the declaration of the president-elect has seven days from today to file a petition at the Supreme Court.
This means the deadline for filing a petition against the presidential election results announced yesterday is August 22.
The latest the Supreme court can render its decision is September 5 and the latest the swearing-in can happen is September 12, if the court dismisses the petition.
Article 140 of the Constitution and the Supreme Court (Presidential Election Petition) Rules, 2017 provide a guideline and time frame within which presidential election petitions filed in the Supreme Court may be heard and determined. Article 140(1) states that any person may file a petition in the Supreme Court to challenge the election of the president-elect within seven days after the declaration of the results.
The Supreme Court (Presidential Election Petition) Rules 2017 states that the petitioner should serve the respondents, who usually include the electoral commission, the president-elect and the deputy president-elect, within one day from the time of filing the petition.
The rules also provide that the respondents ought to file and furnish the petitioner with their responses within four days.
The petitioner should then file the rejoinder within one day from when the respondents file their responses.
Should any of the parties wish to make applications asking the court to make orders that they believe may help their case, the rules require them to file the application and furnish the other party within one day from the date of filing of the response to the petition.
Responses to the said applications should also be lodged within one day.
A third party wishing to join the petition as a friend of the court is supposed to file in court and furnish the parties with an application for joinder within one day from the date of filing of responses to the petition.
In the application, the third party is supposed to demonstrate his or her stake in the petition. If admitted, the court gives directions on how the third party will participate in the dispute.
The rules further provide that a pre-trial conference (preparation for hearing the petition) takes place eight days from the date of filing.
Hearing of the petition commences immediately after the pre-trial conference, and determination of the petition is within 14 days from the date of filing the petition.
“The Supreme Court (Presidential Election Petition) Rules, 2017 have been promulgated to ensure smooth and expeditious disposal of any dispute relating to the election of the President. This is a non-negotiable time frame,” said Chief Justice Martha Koome recently in a notice.
Article 140(3) of the constitution provides that if the Supreme Court determines the election of the president-elect to be invalid, as was the case in 2017, when President Uhuru Kenyatta’s re-election was nullified, a fresh election will be held within 60 days.
In addition, Article 139 states that if a president-elect dies before assuming office, the deputy president-elect will be sworn in as acting president. A fresh presidential election will, thereafter, be held within 60 days after the death of the president-elect.
If the deputy president-elect dies before assuming office, the office shall be declared vacant on the assumption of office by the person declared elected as the president.
In the event, that both the persons declared elected as the president and the deputy president die before assuming office, the Speaker of the National Assembly will act as president until a fresh presidential election is conducted within 60 days.